@Kezzera @actxrz

@Kezzera @actxrz

@Kezzera

"[W]here a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him." Davis v. Wakelee, 156 U. S. 680, 689 (1895). This rule, known as judicial estoppel, "generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase." Pegram v. Herdrich, 530 U. S. 211, 227, n. 8 (2000); see 18 Moore's Federal Practice § 134.30, p. 134-62 (3d ed. 2000) ("The doctrine of judicial estoppel prevents a party from asserting a claim in a legal proceeding that is inconsistent with a claim taken by that party in a previous proceeding"); 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4477, p. 782 (1981) (hereinafter Wright) ("absent any good explanation, a party should not be allowed to gain an advantage by litigation on one theory, and then seek an inconsistent advantage by pursuing an incompatible theory").

New Hampshire v. Maine, 532 U.S. 742, 749 (2001).

1. Plaintiff’s Motion for Summary Judgment is procedurally premature. Defendant has not yet filed a responsive pleading, and the case is not yet at issue.
2. No discovery phase has commenced. The parties have not held a pretrial conference, nor has any discovery schedule been entered by the Court.
3. Although Plaintiff has unilaterally served discovery requests, Defendant has not yet responded, as the matter remains in the pleadings stage.
4. Under Rule 38(d), the Court may defer or deny a motion for summary judgment when a nonmovant cannot present facts essential to justify opposition. Here, the absence of discovery and lack of joinder of issues makes summary judgment not only premature but prejudicial.
5. Defendant intends to file a declaration under Rule 38(d) within the requested extension period, supporting a motion to defer or deny Plaintiff’s Motion for Summary Judgment.